Fundamental dishonesty and exaggerating injuries: a cautionary tale

Robert Sudale v Cyril John Ltd [05.02.21]

In this case, the claimant’s personal injury claim for damages was dismissed on the grounds of fundamental dishonesty. The Judge found the claimant had pursued a claim relying upon a significant exaggeration of his symptoms.

The hearing took place as a “hybrid” trial before HHJ Hedley at Leicester County Court. Kennedys acted on behalf of the defendant’s insurer, Aviva.

Background

Mr Sudale (claimant), was employed as a painter and decorator by Cyril John Ltd (the defendant). He claimed damages for personal injuries sustained in an accident at work when he fell approximately 15 feet from a mobile scaffold tower. The claimant was experienced and trained in the erection and use of the type of scaffolding used. 

Having constructed the scaffolding tower, the claimant found it to be too short. The defendant confirmed additional scaffolding was available at their premises, just a few hundred yards away but rather than obtain the additional scaffolding, the claimant moved the tower along and climbed it a second time. Unfortunately, the tower slid away beneath him resulting in the claimant falling onto the concrete floor. He sustained a fracture to the lumbar spine, requiring hospitalisation and surgery. The claimant complained of ongoing and intrusive back symptoms that limited his work capacity and meant that he required ongoing care.

Orthopaedic and psychiatric expert evidence was obtained by both sides. Late in the proceedings, the claimant applied to introduce evidence from a neuropsychologist based on an alleged head injury. This was refused by the court.

Liability for the accident was admitted subject to contributory negligence.  Settlement could not be agreed so the matter proceeded to trial.

Quantification of losses

With regards to the value of the claim, the true extent of the claimant’s injuries and resulting disability was an issue. The claimant initially set out a claim in excess of £400,000, later reducing it to just over £230,000 prior to trial.

Fundamental dishonesty

The defendant submitted that the claimant was an unreliable witness and had been fundamentally dishonest in accordance with Section 57 of the Criminal Justice and Courts Act 2015 (CJCA 2015), relying upon the covert surveillance of the claimant, which showed the claimant was not suffering symptoms to the extent stated by him in his evidence and his presentation to the medical experts. The claimant sought to put forward various explanations but upon seeing the footage, both orthopaedic experts and the defendant’s psychiatrist changed their views.

Decision

HHJ Hedley found that the allegations of contributory negligence were not made out. It was for the defendant to prove the allegations and the evidence was not sufficient.

HHJ Hedley assessed damages at just £73,959.24, awarding only £5,000 for future loss of earnings and nothing for future care. He then dismissed the claimant’s claim in its entirety on the grounds that the claimant had been fundamentally dishonest, applying Section 57 of the CJCA 2015. In reaching this decision, HHJ Hedley stated:

Claims have been asserted which, in my judgment, did not have any proper evidential foundation. What Mr Sudale had presented to the orthopaedic surgeons was a picture which was simply untrue and significant heads of claim (in particular the claims for future care and loss of future earnings) were put forward on the basis that he had a very much greater degree of mechanical back pain that [sic] was actually the case.

Following further submissions in relation to the draft judgment, HHJ Hedley listed a further hearing to consider the question of “substantial injustice”.

Was there substantial injustice?

The claimant argued that the defendant’s conduct was also worthy of criticism as they had relied upon evidence from a witness to support their allegations of contributory negligence and that witness had changed his evidence. The claimant argued it was comparable to his own conduct, as found by the Judge and as such, there would be “substantial injustice” should the claimant’s claim be dismissed.

HHJ Hedley noted that the purpose of Section 57 was to deter exaggerated claims brought by claimants. Therefore the loss of the claimant’s damages was not due to conduct by the defendant, but that of the claimant. Further, the Judge referenced the fact that this had been expressly considered by Parliament when the bill was being discussed.

The Judge went on to consider the position were he to be wrong about the application of Section 57. He rejected the claimant’s submissions that conduct by a defendant falling short of “fundamental dishonesty” could be taken into account, noting that whilst the defendant’s witness had been “extremely careless” in his statement, he was not dishonest. He stated that the claimant’s conduct was of a “wholly different character”.

In this case, the claimant had continued to advance a case of ongoing symptoms and disability despite the surveillance evidence and the view of the orthopaedic experts, including his own expert, and persisted to deny any exaggeration, maintaining his extensive claim for future care. The court found there was no “substantial injustice” in the operation of Section 57, dismissing the entire claim and ordered the claimant to pay 90% of the defendant’s costs on the indemnity basis.

Comment

The case highlights the strength of covert surveillance in claims where a claimant seeks to persuade the court of ongoing symptoms and disability where their injuries have largely improved. It also highlights the importance of obtaining a detailed chronology of the claimant’s accounts of their functional restrictions to cross reference with footage to highlight the differences in the case presented by the claimant and that which can be seen at the time of the surveillance.  

The case further provides helpful guidance in the application of Section 57(2) of the CJCA Act 2015 and Parliament’s intentions in respect of the use of Section 57, namely to act as a deterrent to claimants bringing exaggerated claims before the court. The outcome of this case also confirms that the application of Section 57 relates only to the claimant’s conduct, and not that of the defendant.